APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
541 N.E.2d 132, 184 Ill. App. 3d 412, 133 Ill. Dec. 295 1989.IL.764
Appeal from the Circuit Court of Cook County; the Hon. James Bailey, Judge, presiding.
JUSTICE LORENZ delivered the opinion of the court. MURRAY, P.J., and PINCHAM, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ
Following a bench trial, defendants, Charles Jones, Kenneth Henson, and Charles Martin, were convicted of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12-14(a)(1)), two counts of attempted murder (Ill. Rev. Stat. 1985, ch. 38, pars. 8-4, 9-1), home invasion (Ill. Rev. Stat. 1985, ch. 38, par. 12-11(a)(1)), and three counts of armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18-2(a)), and were sentenced to 60 years' imprisonment. Each defendant filed a timely notice of appeal and the cases were consolidated in this court. We will address the following four issues on appeal: (1) whether each defendant's motion to quash arrest and suppress statements was denied in error; (2) whether the admission of bloodstain identification testimony based on the process of electrophoresis denied Henson a fair trial; (3) whether each defendant was proven guilty beyond a reasonable doubt of the attempted murder of Mr. L.; and (4) whether Martin was proven guilty beyond a reasonable doubt of aggravated criminal sexual assault. As to Henson and Martin, we affirm in part, reverse in part, and remand for resentencing. As to Jones, we reverse and remand for new trial.
Prior to the trial of this case, each defendant moved to quash his arrest and suppress statements, and each motion was denied by the trial court. Each defendant waived his right to a jury trial, and the evidence at trial established the following facts.
The State presented evidence that on December 17, 1984, at approximately 7:30 p.m., the three defendants, Jones, Henson, and Martin, forced their entry into an apartment while Mr. L., his wife Mrs. L., and his nine-year-old daughter R.L. were home. One defendant was carrying a gun and another was carrying a knife. When defendants kicked down the door, Mrs. L. was thrown on her back on the kitchen floor. She screamed and was told to "shut up" or she would be killed. While lying on the floor, she was stabbed in the back and was threatened, "Shut up bitch or I'll kill you."
Upon entering the apartment, Martin hit Mr. L. in the head with the gun and Mr. L.'s hands were tied behind his back while he was lying in the hallway. Martin asked Mr. L. for his money. He was told if he did not cooperate, he and his family would be killed.
Two of the defendants forced Mrs. L. into the bedroom, where she was raped by a person she could not identify. She was also forced to perform oral sex on Jones, during which time she scratched him in the groin area. Henson then raped her while Jones beat her in the head with a cribbage board and the gun. Jones also put the gun in her mouth and asked her how she would like to be "popped" that way. After Henson raped her, Jones put the gun in her vagina and asked how she would like to be killed that way. Jones raped her again. Mrs. L. testified she was not sure whether Martin was involved in the attack. She also testified that she heard the defendants refer to each other as BeeBee, *fn1 Fork, and Chuck.
During the time Mrs. L. was being raped, Mr. L. was hit several times in the head with the gun and one of the men stomped on his head. He was repeatedly kicked and hit with the gun. Mr. L. testified that defendants repeatedly stated, "I don't believe you only have this much money in the house. You have to have more." He was dragged into the bathroom, where he could hear Mrs. L. crying in the bedroom, and defendants stated, "Shut up bitch. We are going to kill you." Mr. L. testified that he heard Mrs. L. beg, "Don't kill my family."
During the time Mr. L. was being beaten, Jones was in the living room with R.L. He took R.L.'s pants off and sexually assaulted her with his finger. Afterward he threw her next to her father in the bathroom. While lying in the bathroom, R.L. told her father that the defendants told her if she moved, they would kill her. Mr. L. and R.L. were repeatedly kicked and beaten while in the bathroom. Mr. L. testified he heard two of the defendants arguing in the hallway. One stated they should kill the family and the other disagreed. One of the defendants came in the bathroom, held a gun to R.L.'s head, and told Mr. L. he would kill R.L. if he did not show him the key to their car. Mr. L. showed him the key and told him where the car was parked. Martin and Jones removed property from the apartment and loaded it into the car.
Mrs. L. testified that after she was attacked, she was left alone in the bedroom. Henson returned shortly thereafter and placed a gun "nonthreateningly" on her chest. He told her, "Don't worry. We didn't hurt your baby. I am sorry all this happened. I will make sure we get caught." When she heard footsteps leaving the apartment, she wrapped her shirt around her stab wounds to stop the bleeding and telephoned the police. She passed out and was taken to the hospital by ambulance.
Mrs. L. was in critical condition when she arrived at the hospital and required immediate surgery. The stab wounds caused extensive internal bleeding. One stab wound cut off the blood supply to her spleen and it had to be removed. The other stab wound missed her abdominal aorta by three millimeters. She had been beaten in the face and head and had multiple bruises on the rest of her body. She was in the hospital recovering from her injuries and surgery for eight days. Mr. L. suffered several lacerations to the head and a broken nose, and his injuries required a total of 25 stitches, some to the head and some to the nose. R.L. had bleeding wounds on her head and bruises on her back and legs. She also had a bruise in the shape of a shoe on her stomach. An examination revealed a bruise, a laceration, and blood in her vagina.
After a police investigation, defendants were arrested and each gave statements to the police which were admitted into evidence at trial. The trial court admitted each statement only against the defendant who made it. The statements substantially corroborated the State's evidence.
Martin gave an oral statement admitting that he broke into the apartment with Henson, whose nickname was BeeBee or BayBay, and Jones, whose nickname was Folks or Fork. Martin was carrying a gun and Jones was carrying a knife. Martin gave the gun to Henson, who was with Mrs. L. Shortly after entering the apartment, Martin went downstairs to watch for police. When he returned, he heard Henson say, "[Take] off your clothes." When he reentered the apartment he saw Henson raping Mrs. L. Jones told R.L. to take off her clothes and he put his finger in her vagina. Jones put R.L. in the bathroom, where Mr. L. was tied up lying on the floor. Mr. L. was bloody. Jones struck Mr. L. with the gun several times and also struck R.L. Martin said they needed a car to remove property from the apartment, and Jones struck Mr. L. several more times, demanding his car keys. Martin waited in the car while Jones brought the property down from the apartment. Martin asked where Henson was and Jones said, "He is still up messing with the woman." They brought the property to the apartment of one of Jones' friends.
Henson gave a written statement admitting he broke into the apartment with Martin and Jones, whom he knew as Jake or Pitchfork. Henson's nickname was BeeBee. Martin hit Mr. L. in the head with the gun and Henson took his wallet. Jones, who had a knife, took Mrs. L. into the bedroom. Martin gave Jones the gun, and Jones hit Mrs. L. in the head with it. Jones raped her and forced her to perform oral sex. Henson then raped her. Jones brought R.L. in the bathroom and hit Mr. L. in the head with the gun several times. Martin and Jones took the property out of the apartment and to the car. Henson left the apartment shortly thereafter, and when he found Martin and Jones, they divided the $25 they took from Mr. L.'s wallet.
Jones also gave a written statement admitting he broke into the apartment with Martin and Henson, whose nickname was BeeBee. Jones' nicknames were Pitchfork, Fork, and Chuck. Martin hit Mr. L. in the head with the gun. Henson took $25 from Mr. L.'s wallet and tied him up. Jones, who was carrying a knife, took Mrs. L. in the bedroom and raped her. He also forced her to perform oral sex. Jones hit her in the head with the gun. While Henson was holding Mrs. L., Jones stabbed her in the back. In the living room, Jones took R.L.'s pants off and Martin covered her head with a pillow. Jones put his finger in her vagina. Jones took her into the bathroom and put her on the floor next to Mr. L. Jones hit Mr. L. with the gun several times when he would not cooperate. Jones also hit R.L. with the gun. Martin and Jones took the property from the apartment and to the car. Henson was raping Mrs. L. at this time. Martin and Jones later met Henson and they divided the $25.
After the close of the State's case, defendants moved for a directed finding which was denied. Each defendant rested without presenting evidence. Defendants were convicted of aggravated criminal sexual assault, attempted murder, home invasion, and armed robbery, and were sentenced to 60 years' imprisonment. Defendants' motions for new trial were denied and each filed a timely notice of appeal. I
The first issue presented is whether each defendant's motion to quash arrest and suppress statements was denied in error. The facts of each defendant's motion will be addressed separately.
HENSON'S MOTION TO QUASH ARREST AND SUPPRESS STATEMENTS
Prior to trial, Henson moved to quash his arrest and suppress statements based on his warrantless arrest. The trial court denied the motion finding that exigent circumstances justified his arrest without a warrant.
Henson was arrested at approximately midnight on December 18, 1984, the day after the crime occurred. Detectives investigating the crime learned that the gun found at the scene, a .41 caliber Magnum, was stolen in an unrelated burglary Martin may have committed. At approximately 7 or 8 p.m. on December 18, Martin's mother told them that Martin was with his friend known to her as BeeBee the night of the crime. Martin and BeeBee left her apartment that night at approximately the time the crime occurred. Martin's mother gave the police a physical description of BeeBee. BeeBee's uncle, James Hardiman, also told them he saw Martin and BeeBee together at the apartment that evening. Hardiman told the ...